U.S. v. Brown, s. 90-1220

• Decision Date: 24 December 1990
• Docket Number: 90-1214,Nos. 90-1220,s. 90-1220
• Citation: 921 F.2d 785
• Parties: UNITED STATES of America, Appellee, v. Everett Aaron BROWN, Appellant. UNITED STATES of America, Appellee, v. Jerry Lee DORSEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 785

921 F.2d 785

UNITED STATES of America, Appellee, v. Everett Aaron BROWN, Appellant.

UNITED STATES of America, Appellee, v. Jerry Lee DORSEY, Appellant.

Nos. 90-1220, 90-1214.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 28, 1990.

Decided Dec. 24, 1990.

Robert J. Benbenek, St. Louis, Mo., for appellant Brown.

Daniel P. Reardon, Jr., Clayton, Mo., for appellant Dorsey.

Michael W. Reap, St. Louis, Mo., for appellee.

Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

BEAM, Circuit Judge.

Jerry Lee Dorsey appeals from his conviction for attempt to possess phencyclidine (PCP) with intent to distribute. Everett Aaron Brown appeals from his conviction for attempt to possess PCP with intent to distribute and for carrying a firearm during and in relation to a drug trafficking offense. Dorsey contends that the sentence he received is "unjust" because his base offense level was determined according to the total quantity of PCP and ether mixture rather than the relatively small amount of pure PCP involved. Dorsey also argues that the district court erred in sentencing him by failing to depart from the sentencing guidelines on the basis of mitigating factors. Brown, on the other hand, argues that there was insufficient evidence on both charges to support his conviction and that the trial court erred in denying his motion for severance of his trial from Dorsey's and in denying his motion for severance of the offenses charged against him. We affirm.

I. BACKGROUND

On March 24, 1989, United States postal inspectors in St. Louis, Missouri, searched, pursuant to a search warrant, an express mail package en route from California. The package was addressed to "Betty Adams" at 4028-A Cleveland Avenue in St. Louis. Inside the package, postal inspectors found a mouthwash bottle containing PCP. Postal inspectors removed the bottle, poured a small amount of the PCP into a small glass vial, and then placed the vial and a mouthwash bottle disguised to look like the original bottle of PCP back in the package. Pursuant to a court order, the package was equipped with an electronic beeper that would signal law enforcement officers when the package was reopened.

On March 28, 1989, a United States postal inspector delivered the package to 4028-A Cleveland Avenue, a single unit in a small apartment house in St. Louis. A woman named Brenda Jacobs received and signed for the package. Later that afternoon, appellants Dorsey and Brown arrived together at the apartment building. Within a few minutes of their arrival, the electronic beeper signaled law enforcement officers that the package had been opened. The officers immediately entered the apartment pursuant to a search warrant.

The first officer in the apartment saw appellant Dorsey with a brown paper package wrapped in tape in his hand. Dorsey ran away from the officer but was apprehended in the kitchen, where he put the package on a table and told the officer that it did not belong to him. The package contained the mouthwash bottle which had been disguised to look like the original bottle of PCP. The second officer entering the apartment rushed into a bedroom adjacent to the entryway. In this room he found the appellant Brown and Brenda Jacobs. According to the officer's testimony, the express mail package was open on a bed and Brown was trying to put a pistol (later determined to be a loaded .38 caliber revolver) underneath the mattress. The officer testified that he ordered Brown to drop the gun and that Brown did so after a few seconds. Trial transcript, vol. I, at 30-31, 48-51. The third officer who entered the apartment--the second officer into the room in which Brown and Jacobs were found--testified that Brown was not holding the pistol when he entered the room, but that the pistol was on the floor under the mattress. Trial transcript, vol. III, at 5-6, 9-10. Dorsey, Brown, Jacobs, and a fourth occupant of the apartment (who was later determined to have simply been present at the time the officers arrived) were arrested by the officers.

Dorsey and Brown were indicted together and tried jointly in district court. Jacobs and the fourth occupant of the apartment were not charged with any crime. Dorsey and Brown were charged with attempted possession with intent to distribute PCP, in violation of 21 U.S.C. Secs. 841(a)(1), (b)(1)(B)(iv) and 846. Brown was also charged with using and carrying a dangerous weapon during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c)(1).

An investigation revealed that the apartment at 4028-A Cleveland was the residence of Dorsey and Jacobs. The search of the apartment revealed a number of pieces of circumstantial evidence. For example, officers found--in addition to the loaded .38 caliber pistol--several .38 caliber bullets, .22 caliber bullets, a smoking pipe, a razor blade, "ziplock baggies" on the fireplace mantel, and two triple-beam scales in the kitchen of the apartment. Moreover, records obtained from Western Union showed that on March 22, 1989, Dorsey had wired $2,300 to a person in Los Angeles, California. In addition, records of the telephone company revealed that three telephone calls from an unidentified telephone in St. Louis were made to the Los Angeles area of California the day of and the day prior to the arrest. The calls were charged to the telephone account of Dorsey's parents. Investigation also revealed that, prior to delivery of the PCP, Dorsey had approached his mail carrier on two occasions to inquire about the arrival of a package addressed to "Betty Adams."

Before trial, several motions were filed, including motions by Dorsey and Brown for severance of their trials and a motion by Brown to sever the offenses charged against him. All of these motions were denied by the district court. At trial, Dorsey testified in his own defense. He acknowledged sending $2,300 to California, but he claimed that the money was actually a loan from him to Brown and that he was merely sending it on Brown's behalf. According to Dorsey's testimony, he did not know at the time the money was wired to California that it was being used to purchase an illegal drug. Dorsey also said that when the package arrived, he opened it and was going to pour its contents down the drain of the kitchen sink because he detected the smell of PCP. Trial transcript, vol. III, at 51-52, 56-57. Dorsey admitted owning the gun that was found with Brown. Brown did not testify.

Also at the trial, there was testimony concerning the way in which PCP--which is legitimately sold as a tranquilizer for animals--is used in the illicit drug market. One government witness explained that tobacco and marijuana cigarettes are often dipped into a liquid mixture of PCP and ether. The evaporativity of the ether allows the cigarettes to dry quickly and the PCP ingredient left in the cigarette produces an hallucinatory effect on the smoker. An ounce of PCP-ether mixture will usually be enough to produce about sixty cigarettes laced with PCP, each of which sells on the market for about $10.00. Trial transcript, vol. II, at 60-65.

Dorsey and Brown were convicted by a jury in September 1989 and were sentenced by the district court the following December. Dorsey was sentenced to 121 months imprisonment and Brown received consecutive prison sentences of 360 months for the narcotics charge and 60 months for the firearm charge. Dorsey and Brown raise separate issues on appeal.

II. DISCUSSION: DORSEY

A. Determination of Base Offense Level According to Total PCP-Ether Mixture

Dorsey contends that the sentence he received is "unjust" because his base offense level under the guidelines was determined by the total quantity of PCP and ether mixture, without any regard for the quantity of pure PCP contained in the mixture. While Dorsey does not explicitly state a legal basis for this assertion, he alludes to a claim of a violation of the due process clause and we will treat it as such for purposes of this appeal. ¹ Because this issue is one of federal constitutional law, our standard of review is de novo. Jenkins by Agyei v. Missouri, 807 F.2d 657, 703 (8th Cir.1986), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987).

Base offense levels for unlawful trafficking in drugs are determined under the guidelines by reference to the Drug Quantity Table set forth in section 2D1.1(c) of the Guidelines Manual (unless the offense involves death or serious bodily injury). Under the Drug Quantity Table, the base offense level increases one level for each incremental increase in the quantity of the drug involved. PCP is quantified at each applicable level of the Table according to the two forms in which the drug can be found: either as part of a mixture or as a pure drug. (At each base offense level, the mixture-purity ratio for these quantities is ten to one.) ² Under the Drug Quantity Table, the quantity to be used in determining the base offense level in cases involving PCP is that quantity which will result in the highest base offense level. The guidelines under which Dorsey's sentence was calculated provide the following in a note to the Drug Quantity Table: "Consistent with the provisions of the Anti-Drug Abuse Act, if any mixture of a compound contains any detectable amount of a controlled substance, the entire amount of the mixture or compound shall be considered in measuring the quantity." United States Sentencing Commission, Guidelines Manual, App. C, amend. 125 (Nov.1989) (emphasis added). ³

According to Dorsey's presentence report, which was adopted by the district court, the total quantity of PCP-ether mixture involved in this case was approximately 835 grams and the purity level of this mixture was 4.7%. ⁴ Thus, the total quantity of the pure PCP only amounted to approximately 39 grams (a mixture-purity ratio of less than twenty to one). The district court, by following the note appended to the Drug Quantity Table,...